Opinion
8:00CR97.
October, 2000.
ORDER
Before me is the defendant's motion (Filing No. 47) for a new trial made pursuant to Federal Rule of Criminal Procedure 33. On September 29, 2000, a jury returned a guilty verdict against the defendant on four counts of mail fraud under 18 U.S.C. § 1341. The defendant now contends that he was deprived of his right to a fair trial because of both jury and prosecutorial misconduct. The defendant did not submit a brief in support of his motion for a new trial, but did file affidavits from both his attorney and himself. See Filing Nos. 48 and 49. The government submitted a responsive brief.
Jury Misconduct.
The defendant elected not to testify in his own defense at the trial. Following the trial, the defendant alleges that one of the jurors approached the defendant's attorney and commented, "For your information the jury would have like[d] to have heard from Murray. Several of the jurors mentioned that during the deliberations." Filing No. 47, Defendant's Motion for a New Trial at 2 (hereafter, "Defendant's Motion"). The defendant contends if the juror's statements were true, the jury violated Instruction No. 3, which told the jury to not consider or discuss in arriving at its verdict the defendant's decision to exercise his constitutional right not to testify. The defendant says that the jury violated his Fifth Amendment rights against self-incrimination, to a fair trial, and to a trial by a fair and impartial jury. Id. The defendant offers no authority to support his argument.
The defendant's challenge to the verdict asks me to review the jury's deliberations and to analyze the extent and effect of any discussion regarding the defendant's decision not to testify. Were I to permit the defendant's challenge to proceed, an evidentiary hearing would be required during which jurors likely would be asked to either testify or submit affidavits about what they said and thought during their deliberations. I then would be required to determine whether the discussion about the defendant's decision not to testify, if it in fact occurred, constituted misconduct and, if so, whether it was substantial enough to have violated Instruction No. 3, formed one of the bases for the jury's decision to convict the defendant, and/or violated the defendant's right to fair trial by an impartial jury. Such inquiries would take the court deep within the jury's deliberative processes.
I am spared such an inquiry, however, because juror testimony and affidavits generally cannot be used to impeach a jury's verdict except in unusual circumstances that do not exist in this case. When a party inquires about "the validity of a verdict or indictment," federal law precludes a juror from testifying
as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith. . . .
Fed.R.Evid. 606(b). The rule also disallows the use of "a juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying." Id. The rule's prohibition on juror testimony or affidavits yields only when a question arises about "whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror." Id. The defendant here does not allege that any such extraneous prejudicial information or outside influence tainted the verdict.
The Eighth Circuit has long held that a jury verdict cannot be impeached merely because jurors discussed during deliberation the defendant's decision not to testify. Stout v. United States, 227 F. 799, 804 (8th Cir. 1915). Like this case, the defendant in Stout did not allege that outside influences had tainted the verdict. Instead — also like this case — the defendant learned of the discussion from two jurors after the jury had already returned its verdict. The defendant then sought to subpoena the two jurors and others to testify about the discussion. The court refused to allow the defendant to impeach the verdict with jurors' testimony. See also McDonald v. Pless, 238 U.S. 264, 269 (1915) ("[T]he losing [private] party cannot, in order to secure a new trial, use the testimony of jurors to impeach their verdict."). Cf. United States v. Certain Land in the City of Lincoln, 343 F. Supp. 155, 159 (D.Neb. 1972) (affidavit permitted to show juror's misconduct in visiting premises in a condemnation case because the affidavit stated "neither [the juror's] mental processes nor conversations with other jurors which led to his agreement with the verdict").
The jury was well aware of the prohibition in Instruction No. 3. In closing argument, counsel for the defendant made much of the decision not to have the defendant testify or to present any other evidence on the defendant's behalf. Counsel repeatedly told the jury that the defendant believed the government had not met its burden of proving the defendant guilty beyond a reasonable doubt and that for that reason the defendant had elected to exercise his constitutional right not to testify. The defendant's decision therefore put the spotlight on the absence of affirmative defense evidence, making it entirely natural for the jury — despite the prohibitions in Instruction No. 3 — to question if evidence the defendant might have produced would have filled gaps in their understanding of what occurred or rebutted evidence the government had produced. In similar circumstances in Stout, the court noted,
There should be no hurtful presumption from the failure of an accused personally to testify, but that does not necessarily exclude a prejudice resulting from an entire absence of affirmative evidence in defense, nor inferences from a failure to produce evidence peculiarly within his knowledge or control, not requiring personal disclosures or his presence upon the witness stand.Stout v. United States, 227 F. at 804. But asking the jurors if they actually voiced such questions or whether such questions played any role in reaching the verdict is exactly the sort of inquiry that Rule 606(b) precludes. The defendant cannot blame the jury for the results of his own carefully plotted strategic decisions. See Filing No. 48, Aff. of J.M. Davis.
A larger question remains, of course, after determining that jury members cannot testify about their deliberative process: whether the defendant's rights to a fair trial by an impartial jury were somehow violated by one juror's post-verdict admission that he and other jurors had wished aloud during deliberations that the defendant had testified. I find that the defendant's rights were not violated. The jurors' interest in the defendant's testimony is not the sort of "outside influence" or "extraneous prejudicial information" that would constitutionally taint the verdict. As a matter of public policy, juries must be given absolute privacy "to engage in the full and free debate necessary to the attainment of just verdicts. Jurors will not be able to function effectively if their deliberations are to be scrutinized in post-trial litigation." Tanner v. United States, 483 U.S. 107, 125 (1987) ( quoting S. Rep. No. 93-1277, p. 13, U.S. Code Cong. Admin. News 1974, p. 7060). The possibility that one or more jurors expressed curiosity during deliberations about the defendant's possible testimony is grounds for neither a new trial nor a post-verdict hearing on alleged "juror misconduct" during deliberations.
Prosecutorial Misconduct. The defendant's second ground for a new trial also fails. The defendant contends that during its case in chief, the government adduced evidence on direct examination "that constituted material misrepresentations and false statements which become apparent only upon cross-examination." Filing No. 47, Defendant's Motion for a New Trial at 2. The defendant's motion lists several witnesses whose direct examinations allegedly contained intentional omissions and false statements B in effect, perjury elicited or condoned by the government's attorney.
To prove that the government's use of false testimony violated the defendant's right to a fair trial, the defendant must show that A(1) the prosecution used perjured testimony; (2) the prosecution knew or should have known of the perjury; and (3) there is a reasonable likelihood' that the perjured testimony could have affected the jury's judgment." United States v. Martin, 59 F.3d 767, 770 (8th Cir. 1995) ( quoting United States v. Nelson, 970 F.2d 439, 443 (8th Cir. 1992)). See also United States v. Papajohn, 212 F.3d 1112, 1117 (8th Cir. 2000). I find that the defendant has not established that any of challenged testimony was in fact perjured or that the government knowingly used perjured testimony. Merely because a witness gives testimony on direct examination that is later impeached on cross-examination does not mean that the witness testified falsely on direct examination or that the government suborned perjury.
The defendant contends that one witness, Eric Cano, "recanted" testimony that the defendant had signed Cano's name to certain documents without his permission"[o]nly after cross-examination and after being shown documents" in the possession of either the government or Cano himself. Defendant's Motion at 3, ¶¶ B(2)(a)-(b). These documents were trial exhibits. They were forms used in the defendant's travel business to which the defendant had access. The defendant overstates the nature of Cano's "recanting," however. Cano merely admitted during an intense cross-examination that perhaps he had been mistaken about whether he or the defendant had signed certain documents. This admission does not amount to perjury, but rather represents successful impeachment on cross-examination. The jury was responsible for determining which version of Cano's testimony was more credible.
The same is true of Aaron Wexler's testimony. Wexler had purchased travel certificates from one of the defendant's companies, Premium Advantage, which he testified he had been unable to redeem. Defendant's Motion at 3-4, B(2)(c). On cross-examination, counsel for the defendant succeeded in demonstrating that the back side of a Continental Airline travel certificate, which Wexler testified he had attempted to use at the same time as Premium Advantage travel certificates, contained a limitation stating that it could not be used in conjunction with any other travel certificate. Again, the prosecution's failure to show the reverse side of the Continental certificate to the jury did not constitute the use of perjured testimony. The defendant's attorney used the cross-examination to introduce the additional evidence impeaching Wexler's testimony.
The same is also true of V.J. Sood's testimony. Sood performed an audit of ticket sales at the defendant's travel agency, Georgetowne Travel, for his employer, Airlines Reporting Corporation. The defendant alleges that on re-direct examination, Sood testified that all of the entries on Exhibit 25 for Georgetowne Travel on June 24, 1995, were unreported ticket sales. Defendant's Motion at 4, B(2)(d). The defendant states that this testimony was false because on cross-examination Sood admitted that only a portion of the entries on Exhibit 25 for Georgetowne Travel were for unreported ticket sales. Even if I were to grant that the defendant has correctly characterized Sood's cross-examination testimony, I find that the defendant has not shown that Sood's testimony was false or that the government knowingly adduced his false testimony. The defendant's cross-examination did no more than attempt to impeach the accuracy of Exhibit 25 and Sood's audit. Whether Sood and Exhibit 25 were believable was a decision for the jury.
Finally, the defendant contends that the prosecution adduced false testimony from Canice Kobus that the defendant "was required under his Premium Advantage Merchant account contract with the NBC Bank to amend his merchant account application to include the sale of air travel certificates when the defendant began to sell them." Defendant's Motion at 4, B(2)(e). The defendant alleges that when the merchant account contract was disclosed on cross-examination, it contained no such requirement. Again assuming for purposes of this motion that the defendant's characterization of Kobus's testimony is accurate, I find that the defendant has not showed that Kobus's testimony was perjurious or that the government knowingly adduced her false testimony. The defendant used his cross-examination of Kobus to attempt to impeach her testimony about the terms of merchant accounts at her bank. Kobus's credibility was for the jury to determine.
There is no credible evidence that either the jury or the prosecution engaged in any misconduct during the defendant's trial. As a consequence, I find that he received a fair trial by a fair and impartial jury. Accordingly,
IT IS ORDERED that the defendant's motion (Filing No. 47) for a new trial is denied.